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The Court of Justice has handed down a very significant Opinion in Case Opinion 1/09 on the compatibility with EU law of a draft agreement which aims to set up a new European Patent Court system. We’ve written about that before.

The Opinion is significant because of the manner in which the Court examines the roles of national courts and of the EU courts in safeguarding the proper application of EU law.

The Court concluded that the system as envisaged would be incompatible with EU law because it ousts the jurisdiction of national courts to apply EU law. The envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the EU an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply EU law in that field, would deprive courts of member States of their powers in relation to the interpretation and application of EU law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the EU and on the member States and which are indispensable to the preservation of the very nature of EU law.

The Council drew up a draft international agreement, to be concluded between the member States, the EU and non-member countries which are parties to the European Patent Convention to create a court with jurisdiction to hear cases related to the European patent and the future Community patent. The new court system forms part of a new integrated system for the European and Community patent to be issued by the European Patents Office. Currently, although the procedure for granting that right is unitary, the European patent breaks down into a bundle of national patents, each governed by the domestic law of the States which the holder of the right has designated. By contrast, the distinguishing feature of the future Community patent is that it would be unitary and autonomous and would have equal effect throughout the European Union. It could be granted, transferred, declared invalid or lapse only in respect of that territorial area.

The draft international agreement aims to establish a European and Community Patent Court composed of a court of first instance - comprising a central division and local and regional divisions – a court of appeal and a joint registry.

The Council requested the Court to give an opinion on the compatibility of this new court system with EU law pursuant to Article 218 § 11 TFEU. 21 member States, the European Parliament and the Commission intervened.
The Court dealt first with the basic question whether the TFEU prevented the creation of a new court system outside the one it already sets up.

It held that Article 262 TFEU does not preclude the creation of the patent court system envisaged. While it is true that under that provision there can be conferred on the Court of Justice some of the powers which it is proposed to grant to the Patent Court, the procedure described in that article is not the only conceivable way of creating a unified patent court. Article 262 TFEU provides for the option of extending the jurisdiction of the European Union courts to disputes relating to the application of acts of the EU which create European intellectual property rights. Consequently, that article does not establish a monopoly for the Court of Justice in the field concerned and does not predetermine the choice of judicial structure which may be established for disputes between individuals relating to intellectual property rights.

The Court also held that the creation of the patent court system was not in conflict with Article 344 TFEU: That article merely prohibits member States from submitting a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for in the Treaties. The jurisdiction which the draft agreement intends to grant to the patent court system relates only to disputes between individuals in the field of patents.

Then the Court of Justice went on to examine the envisaged court structure n the light of the fundamental elements of the legal order and judicial system of the EU, as designed by the founding Treaties and developed by the case-law of the Court.

And that is where the problem lay.....

The Court recalled that the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only member States but also their nationals (see, inter alia, Case 26/62 van Gend & Loos [1963] ECR 1, 12 and Case 6/64 Costa v ENEL [1964] ECR 585, 593). The essential characteristics of the EU legal order thus constituted are in particular its primacy over the laws of the member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the member States themselves (see Opinion 1/91 [1991] ECR I‑6079, paragraph 21).

Article 19(1) TEU provides that the guardians of that legal order and the judicial system of the EU are the Court of Justice and the courts and tribunals of the member States.

The Court recalled that its role is to ensure respect for the autonomy of the EU legal order thus created by the Treaties (see Opinion 1/91, paragraph 35).

Member States are obliged, by reason, inter alia, of the principle of sincere cooperation, set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law (Case C‑298/96 Oelmühle and Schmidt Söhne [1998] ECR I‑4767, paragraph 23). Further, pursuant to the second subparagraph of Article 4(3) TEU, the member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU. In that context, it is for the national courts and tribunals and for the Court of Justice to ensure the full application of EU law in all member States and to ensure judicial protection of an individual’s rights under that law (Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 38).

The Court of Justice examined the basic characteristics of the new system. It held that the international court envisaged in the draft agreement is to be called upon to interpret and apply not only the provisions of that agreement but also the future regulation on the Community patent and other instruments of EU law and rules of the FEU Treaty concerning the internal market and competition law. Likewise, the new patent court system may be called upon to determine a dispute pending before it in the light of the fundamental rights and general principles of EU law, and even to examine the validity of an act of the EU.

Thus, the new patent court system as envisaged:

– takes the place of national courts and tribunals, in the field of its exclusive jurisdiction described in Article 15 of that draft agreement,
– deprives, therefore, those courts and tribunals of the power to request preliminary rulings from the Court in that field,
– becomes, in the field of its exclusive jurisdiction, the sole court able to communicate with the Court by means of a reference for a preliminary ruling concerning the interpretation and application of European Union law and
– has the duty, within that jurisdiction, in accordance with Article 14a of that draft agreement, to interpret and apply EU law.

The Court of Justice held that while it has no jurisdiction to rule on direct actions between individuals in the field of patents, since that jurisdiction is held by the courts of the member States, nonetheless the member States cannot confer the jurisdiction to resolve such disputes on a court created by an international agreement which would deprive those courts of their task, as ‘ordinary’ courts within the EU legal order, to implement EU law and, thereby, of the power provided for in Article 267 TFEU or the obligation to refer questions for a preliminary ruling in the field concerned.

The Court recalled the vital role of the national courts in the EU legal order. Article 267 TFEU aims to ensure that, in all circumstances, that law has the same effect in all member States. The preliminary ruling mechanism thus established aims to avoid divergences in the interpretation of EU law which the national courts have to apply and tends to ensure this application by making available to national judges a means of eliminating difficulties which may be occasioned by the requirement of giving EU law its full effect within the framework of the judicial systems of the Member States. Further, the national courts have the most extensive power, or even the obligation, to make a reference to the Court if they consider that a case pending before them raises issues involving an interpretation or assessment of the validity of the provisions of EU law and requiring a decision by them (Case 166/73 Rheinmühlen‑Düsseldorf [1974] ECR 33, paragraphs 2 and 3, and Case C‑458/06 Gourmet Classic [2008] ECR I‑4207, paragraph 20). The system set up by Article 267 TFEU therefore establishes between the Court of Justice and the national courts direct cooperation as part of which the latter are closely involved in the correct application and uniform interpretation of EU law and also in the protection of individual rights conferred by that legal order.

So, because the new system had the effect of ousting the jurisdiction of national courts in the application of EU law, the Court found it incompatible with the EU Treaty.

That is all well and good. But our searching minds thought about BIT arbitration..... Has the Court of Justice inadvertently affected that ?

The Court of Justice, the General Court and the Civil Service Tribunal have published a summary of their case statistics for 2010.

There's good news and bad news. The good news first: The average time for dealing with cases before the Court of Justice has decreased (preliminary references now take 16.1 months on average).

The bad news: the volume of cases is increasing. The number of new cases before the Court of Justice jumped significantly from 562 in 2009 to 631 in 2010 (that's the highest number brought in the Court's history). Likewise, the number of cases brought before the General Court has increased from 568 in 2009 to 636 in 2010. Cases are dealt with more speedily there. Finally, the number of staff cases in the Civil Service Tribunal has increased too which perhaps shows what a difficult employer the Commission is. Cases in the Civil Service Tribunal seem to take ages (18.1 months in 2010 compared with 15.1 months in 2009).

The Commission recently adopted a new Communication on the "Implementation of Article 260(3) TFEU" (SEC(2010) 1371 final) to take account of the changes to what is now Article 260 TFEU (ex Article 228 EC) made by the Lisbon Treaty.

Article 260 TFEU is the provision that allows the Commission to take a member State to the Court of Justice for failure to respect a Court judgment.

The Lisbon Treaty made two changes to the provision. First, as regards the procedure, the Lisbon Treaty removes the pre-litigation stage of issuing a reasoned opinion. Consequently, since the entry into force of the Lisbon Treaty, if the Commission considers that a member State has not complied with a Court judgment, it has to accomplish only one pre-litigation procedural step, namely the sending of a letter of formal notice requesting the member State to submit its observations. After that, the Commission can refer the matter directly to the Court by virtue of Article 260 §2. That should speed up the procedure, automatically reducing the average duration of the procedure to between eight and 18 months.

The second change is more substantial: the Commission can propose to the Court, even at the stage of the infringement proceedings pursuant to Article 258 (ex Article 226 TEC), that it impose a lump sum or penalty payment in the same judgment which finds that a Member State has failed to fulfill its obligation to notify measures transposing a directive adopted under a legislative procedure. Before that change, the Commission had to obtain a declaratory judgment from the Court first and then apply to the Court a second time to request the imposition of a lump sum and penalty payment.

The purpose of the new Communication is to set out how the Commission will behave in taking those cases to the Court. It makes clear that it it will, principally, ask for the imposition of a periodic penalty payment as it considers that such a penalty is the more appropriate to secure rapid implementation of directives. The Commission states that it will also, depending on the circumstances, seek the imposition of a lump sum. It states that it may revise its practice in the light of member States' behavior and seek the imposition of a lump sum in all cases.

Interestingly, the Commission clarifies that in cases before the Court where it has proposed only a penalty, the Commission will withdraw its action if the member State notifies the transposition measures required to put an end to the infringement. In contrast, in cases pending in which it has also proposed a lump sum, it will not withdraw its action simply because the required notification has been made and will pursue the action until a judgment is obtained.

The Commission's earlier Communication, SEC(2005)1658, sets out how it would apply Article 228 EC but no longer seems available online.

“There is a general perception that the Court is unable to handle its current workload and could face difficulties in managing an increase to its workload within reasonable timescales due to the Lisbon Treaty changes. We want to consider how the Lisbon Treaty changes will be felt in terms of workload and efficiency, for example by looking at the turnaround times for disposal of cases and how these compare to other courts of equivalent standing”.

The oral evidence given by British lawyers and civil servants made available here is really worth reading.

More problematic is some of the evidence presented by interest groups and academics available here. One's instinctive reaction to some of it "Hello, has anyone some comparative law perspective?". How can Professor Damian Chalmers seriously claim that "The Court of Justice decides far more cases than senior domestic courts [...] Whilst courts of cassation give high number of judgments, domestic constitutional courts typically give 50-60." Just a cursory glance at the French Conseil d'Etat, for example, would put him on the right track.

Anyway, we await the conclusions and recommendations of the Committee eagerly.

We may have hinted at this before: Bilateral investment treaty litigation is the new, big frontier of EU law.

This arbitral award in the case of Eureko BV v. The Slovak Republic will delight some, worry others.

The story, much abbreviated, goes something like this. The Slovak Republic and the Netherlands had concluded a bilateral investment treaty (BIT) back in 1992 (the Slovak Republic, becoming independent and separated from the Czech Republic in 1993 succeeded to the original BIT). The BIT contained the usual clauses protecting inward investment and a clause providing for arbitration in the event of dispute. Eureko BV, a Dutch corporation providing insurance cover including health insurance, invested heavily in the Slovak Republic when that country liberalized its health insurance market in 2004. But then, in late 2006, a new Slovak government sought to reverse the liberalization of 2004. Eureko claimed that change in policy ruined its investments in the Slovak Republic and began arbitration proceedings against that state in accordance with the arbitration clause in the BIT.

Slovakia claimed, among other things, that the arbitration proceedings should cease as the arbitration Tribunal lacks jurisdiction because the arbitration clause is incompatible with EU law. It claimed that since it had acceded to the EU in 2004, the stipulations of the BIT on capital movements and investment were superseded by the provisions on free movement of capital in the EU and breach the provisions on equal treatment and non-discrimination.

The Arbitration Tribunal decided in its carefully reasoned award of October 26th 2010 to dismiss the objections to its jurisdiction and to continue with an examination of the merits. The Tribunal held that the issues raised by the Slovak Republic concern the merits of the case and no provision of EU law actually prohibits investor-state arbitration.

What is really a cause for concern is the involvement of the European Commission. That institution submitted a brief which, if the Tribunal's description of it (paragraphs 176 to 196 of the award) is anything like accurate, is wildly anti- arbitration. It would seem to be very wrong too. The Commission seems to have claimed that the arbitration clause constitutes discrimination against investors of other nationalities whose nations had not concluded similar BITs with the Slovak Republic (thus ignoring the judgment of the Court of Justice in Case C-376/03 D v. Inspecteur van de Belastingdienst ECR [2005] I-5821, paragraphs 52 onwards. The Commission also relied heavily on the judgment of the Court of Justice in Case C-459/03 Commission v. Ireland ECR [2006] I-4635 (the famous "MOX Plant" case, see our post here) but that case concerned disputes between member States and the exclusive jurisdiction of the Court of Justice laid down in what is now Article 258 TFEU (ex Article 226 EC) not between investors and States. And if that were not bad enough, the Commission stated it was "firmly opposed to the 'outsourcing' of disputes involving EU law" to tribunals outside the EU courts (see paragraph 184 of the award).

Is the Commission seriously claiming that a choice of jurisdiction clause which selects a court of a non member State would breach EU law if a point of EU law had to be decided in a dispute to be submitted to that court ?

The opinion supports the idea that collective redress should be introduced into EU legislation by means of a directive.

On the other hand, the EESC wishes to avoid the introduction of US-style class actions and states:

"Any EU legal measure adopted should reflect European cultural and legal traditions, have compensation as its only goal and establish a fair balance between parties leading to a system that safeguards the interests of society as a whole. The Com­mittee fully supports the Commission’s suggestion that whichever measure is adopted to institute a judicial collec­tive redress mechanism in all Member States ‘should avoid elements which are said to encourage a litigation culture such as is said to exist in some non-European countries, such as punitive damages, contingency fees and other elements’.

Also the EESC prefers an opt-in system to collective action to an opt-out system.

The opinion makes interesting reading and contains a wealth of references on EU consumer law.

Meanwhile, the Commission's work on collective redress and damages for antitrust violations is not progressing much. You can find documents on that here and the EESC's opinion of 2006 here.

It claims that it has it has completed in 2009 one of the highest numbers of cases in its history: 543 cases as compared to 495 in 2008. That is quite a gain in productivity. The number of new cases lodged with it remains high (561 in 2009, as compared to 592 in 2008) as to be expected given the ever increasing amount of legislation that is in force. The good thing is that the duration of proceedings in appeals has gone down (15.4 months in 2009, 18.4 months in 2008) while the duration of cases in other types of procedure is more or less the same as in 2008. Interestingly, the number of cases delivered without an Advocate General's opinion has increased (52% in 2009, 41% in 2008).

The General Court does not seem to be doing quite so well. The duration of actions in areas other than intellectual property has actually increased from 26 months in 2008 to 33.1 months in 2009. There is a very slight decrease in the duration of proceedings in intellectual property cases because of Article 135a of the Rules of Procedure that provides that the hearing may be dispensed with in certain cases. The number of new cases remains high (568 in 2009) and the stock of pending cases is still enormous (1191 cases). So, a problem there.

Finally, the Civil Service Tribunal has improved its productivity, completing 155 cases in 2009 while only 113 new cases were brought. The duration of proceedings has gone down from 17 months in 2008 to 15.1 months in 2009.

The Court of Justice has handed down a quick judgment in Case C-1/90 CELF that clears up the situation of national courts seised of an action for the recovery of unlawful state aid pending a decision of the Commission on its compatibility.

The main issue was whether a national court, seised by a competitor of an action for the recovery from a beneficiary of unlawful state aid, may stay those recovery proceedings until the Commission has taken a decision declaring the aid to be compatible with the common market.

The Court of Justice held that the national court may not stay the recovery proceedings in such circumstances but must rule on the matter without waiting for a Commission decision.

The background to the case is rather tortuous and need not really concern us. In short, the French state provided aid to CELF, a cooperative, to promote the export of French language books. A competitor to CELF, which did not benefit from any state support, complained to the Commission that the aid granted was incompatible with the EU and brought an action before the French courts seeking recovery of the aid granted to CELF. The Commission had adopted three successive decisions declaring the aid to CELF to be compatible with the common market but the Court of First Instance (now, General Court) annulled each and every one of those decisions. So the question came up as to what the national court should do with the recovery action pending the adoption of the Commission's fourth decision: To stay or not to stay ?

Definitely, do not stay, is the Court of Justice's answer.

The Court recalled that Article 108 §3 TFEU (ex Article 88(3) EC) entrusts the national courts with the task of preserving, until the final decision of the Commission, the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by that provision (Case C-199/06 CELF I [2008] ECR I-469, paragraph 38). The Court has already in essence ruled, in Case C‑39/94 SFEI and Others [1996] ECR I‑3547, paragraphs 44 and 50 to 53, that:
– the initiation by the Commission of an examination procedure cannot release national courts from their duty to safeguard the rights of individuals in the event of a breach of the requirement to give prior notification;
– where it is likely that some time will elapse before it gives its final judgment, for example, where it seeks clarification from the Commission for the purposes of interpreting the concept of State aid which it may have cause to grant or where it refers a question to the Court for a preliminary ruling, the national court must decide whether it is necessary to order interim measures in order to safeguard the interests of the parties.

The Court also noted that a stay of the national proceedings would amount to maintaining the benefit of aid during the period in which implementation is prohibited which would be inconsistent with the very purpose of Article 108 §3 TFEU and would render that provision ineffective.

The Court adds for good measure that the annulment by the EU courts of a previous positive Commission decision cannot justify any different conclusion prompted by the consideration that, in that case, the aid might subsequently be once again declared compatible by the Commission. The purpose of Article 108 §3 TFEU is clearly prompted by the consideration that, until a new decision has been adopted by the Commission, it cannot be presumed that that decision will be positive in its content.

Here's a very unusual and odd case which the English Court of Appeal had to deal with recently. In Meletios Apostolides v. Orams and Orams, the Court of Appeal had to decide whether or not a judgment of the Court of Justice should be applied or not when one of the parties to the national proceedings made the allegation that the President of the Court of Justice was apparently (not actually) biased and should have recused himself.

The Court of Justice had handed down its judgment in Case C-420/07 Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams, referred by the English Court of Appeal, on whether Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters applied to a judgment given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot Government, but concerning land situated in areas not so controlled (Northern Cyprus).

As a consequence of that judgment, the proceedings resumed before the English courts. But then, surprise, counsel for the respondents in the national proceedings (including, incidentally, Ms Cherie Booth, the wife of the former British Prime Minister, Tony Blair) submitted, amongst other things, that President Skouris, who presided over the Grand Chamber formation that handed down the judgment in Case C-420/07, was apparently biased and should have recused himself. As a result, the respondents claimed the English courts should take no account of the Court of Justice's ruling.

The respondents claimed President Skouris was apparently biased, but not actually biased, because he had received and met with Cypriot judges and parliamentarians, because he had attended a dinner at which the President of Cyprus was present and gave a speech, because he had attended a conference organized by the University of Cyprus and also because he had received an honour conferred upon him by the President of Cyprus. All that, according to the respondents, created an "insuperable problem" of apparent bias.

The Court of Appeal examined each allegation made in some detail. It came to the firm conclusion that President Skouris was not in any position to be biased. Lord Justice Pill concluded roundly:

"As President of the court, the President can be expected to wish to promote knowledge of the court and its workings in Member States, and in particular new Member States. Making official visits and receiving visiting delegations is a valuable and appropriate part of the office of President. That approach is likely to be reciprocated by Member States, including new Member States. Further, any commendation of the Republic of Cyprus in the presence of the President must be seen in the context of numerous international instruments calling for respect for its territorial integrity and independence. In that context, commendation is of the sovereign entity as a whole.
In my judgment, no appearance of bias arises from the visit of the President, together with other judges, to Cyprus in May 2005. [...] No appearance of bias arises from the political nature of a speech said to have been made by the President of Cyprus during the visit. There is no suggestion that the President adopted or approved the sentiments expressed. The same applies to the President of Cyprus's speech when the honour was conferred on the President in November 2006. The reasonable informed observer would have no fears that the remarks might influence the President or other judges in their judicial capacity. Nor does the fact that the honour was conferred by a Head of State, rather than by a head of the judiciary, create a fear that the President might be influenced in his judicial capacity. Such honours will normally be conferred by the Head of State and concern based on a distinction between executive and judicial honours (Bangalore 38(d)) has little relevance.
The purpose of the President's visit to Cyprus in February 2009 was to attend a conference organised by the University of Cyprus. Neither his presence, nor the company he kept, creates an appearance of bias in the President of the judicial organ of the Union which is concerned to promote in Member States of the Union understanding of its role. His meeting, in March 2009, with a delegation of Cypriot MPs to discuss the role of the court does not demonstrate an attempt by the delegation to influence the President, still less does it create an appearance that he may be influenced by the delegation. It was the role of the court that was under discussion and not political issues or particular cases.
The present case was to be decided, and was decided, by a Grand Chamber according to legal principles. The perception of the reasonable and informed observer would be, as is my perception, that there was no real possibility that the President would be influenced by the honour he received or by his other contacts. The judgment of the court is in no way tarnished by those contacts, considered either individually or cumulatively. The judgment may be applied and no further reference is appropriate."

First the story. The young Ms Kücükdeveci was employed from the age of 18 by a private German company called Swedex. In 2006, ten years after she started work for them in 1996, Swedex dismissed her. Swedex calculated that she had accumulated only three years of length of service, not ten years. How come ? Because German legislation stated that the employer should not take account of periods of employment prior to the employee's 25th year of age in calculating the length of employment. Ms Kücükdeveci challenged her dismissal before the German labor courts claiming that the German legislation which disregarded employment before the age of 25 constituted illegal age discrimination and that she was not given the proper period of notice corresponding to her length service.

The German court referred two questions to the Court of Justice: Whether the German legislation constituted illegal age discrimination according to EU primary law and Directive 2000/78 and if so, whether the national court should disapply national law in a dispute between two private individuals.

As to the first question, the Court of Justice held that it is a general principle of EU law that all discrimination on grounds of age is prohibited and Directive 2000/78 "gives expression" to that general principle. The Court refers to Case C-144/04 Mangold in which it had held that held that that directive does not itself lay down the principle of equal treatment in the field of employment and occupation, which derives from various international instruments and from the constitutional traditions common to the member States, but has the sole purpose of laying down, in that field, a general framework for combating discrimination on various grounds including age.

Significantly, the Court also refers to the Charter of Fundamental Rights which now has legal force since the entry into force of the Lisbon Treaty. The Court held that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the charter, ‘[a]ny discrimination based on … age … shall be prohibited’.

But, for those general principles to apply, the case at hand must fall within the scope of EU law. The Court held that it does because the discriminatory conduct complained of in this case was adopted on the basis of national legislation and occurred after the expiry of the deadline for implementation of Directive 2000/78 by the member States. Consequently, this case could be distinguished from Case C-427/06 Bartsch [2008] ECR I-7245.(For our post on that case, see here).

Having held that the discrimination in question was prohibited by EU law as a matter of principle, the Court then answered the second question on the consequences of such a finding. It held that the national court must ensure that the principle of non-discrimination is complied with by disapplying any contrary provision of domestic law.

That is not the end of it, however. The Court went on recalling the member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfillment of that obligation are binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 26; Case C‑106/89 Marleasing [1990] ECR I‑4135, paragraph 8; Case C‑91/92 Faccini Dori, paragraph 26; Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 40; Joined Cases C-397/01 to C-403/01 Pfeiffer and Others, paragraph 110; and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others [2009] ECR I‑0000, paragraph 106).

The Court held that, as a consequence, when it applies national law the national court must ensure, as far as possible, in the light of the wording and the purpose of the directive in question, that the result pursued by the directive is achieved and thereby comply with the third paragraph of Article 288 TFEU (von Colson and Kamann, paragraph 26; Marleasing, paragraph 8; Faccini Dori, paragraph 26; and Pfeiffer and Others, paragraph 113). The requirement for national law to be interpreted in conformity with EU law is inherent in the system of the Treaty, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it ( Pfeiffer and Others, paragraph 114).

Importantly, the Court stated that the German legislation in issue was perfectly clear and could not be interpreted in such a way as to comply with EU law.

Because Directive 2000/78 merely gives expression to, but does not lay down, the principle of non-discrimination on grounds of age as it is a general principle of EU law ( Mangold, paragraphs 74 to 76), the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, must provide, within the limits of its jurisdiction, the legal protection which individuals derive from EU law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle (see, to that effect, Mangold, paragraph 77).

That seems like a rather convoluted way of saying that even if a directive does not have horizontal direct effect, the national court should seek to achieve the same result as if it did have such an effect when the directive gives expression to a general principle of EU law.

Lastly, the Court looked at the question whether the national court must refer a preliminary question on the basis of Article 267 TFEU before disapplying national law contrary to EU law.

The Court held that the national court need not make such a reference. It stated that the need to ensure the full effectiveness of the principle of non-discrimination on grounds of age means that the national court, faced with a national provision falling within the scope of EU law which it considers to be incompatible with that principle, and which cannot be interpreted in conformity with that principle, must decline to apply that provision, without being either compelled to make or prevented from making a reference to the Court for a preliminary ruling before doing so.